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JOHN GLANSKI v. BRUCE W. ERVINE (08/31/79)

filed: August 31, 1979.

JOHN GLANSKI, JR. AND CAROLE L. GLANSKI
v.
BRUCE W. ERVINE, SINGLEMAN AND ELMER C. GRAFF AND CECILIA A. GRAFF, HIS WIFE, APPELLANTS



No. 2193 October Term 1978, Appeal from Order of the Court of Common Pleas of Montgomery County, Pa. at No. 74-11296.

COUNSEL

Barry W. Kerchner, Pottstown, for appellants.

L. Dale Pretz, Pottstown, for appellees.

Price, Spaeth and Lipez, JJ.

Author: Spaeth

[ 269 Pa. Super. Page 185]

This is an appeal from a judgment entered on a jury verdict against appellants Bruce Ervine and Elmer Graff*fn1 in an action in trespass alleging fraud. Appellants argue that it was error for the lower court to have refused to grant their motion for judgment n. o. v.

In 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 prevailing party. Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43, allocatur refused, 205 Pa. Super. xxxvii (1965). . . . In the present case, therefore, this Court must consider whether the evidence, reviewed in the light of these principles, can in any way support a finding of liability against appellant.

Winkler v. Seven Springs Farm, Inc., 240 Pa. Super. 641, 643-644, 359 A.2d 440, 441 (1976).

Viewed in this way,*fn2 the evidence established the following.

As of August, 1973, appellant Ervine owned a farm near Pottstown, where he had lived for years with his father, who died in 1972. Desiring to sell the farm, Ervine entered into an agreement with appellant Graff, a longtime acquaintance who was in the real estate business; it was agreed that a five-acre parcel containing the house and barn would be sold; Graff was to handle the sale, and himself acquired an option to buy.

[ 269 Pa. Super. Page 186]

Appellees responded to a newspaper advertisement and were shown the property in early August, 1973. The property was in extreme disrepair. Junk lay all about. The barn needed structural repair. The house was cluttered and dirty, and the porch was falling down. Appellee Glanski attempted to examine the basement. The front section of the basement, where the heater was, appeared in good repair, but the back section could not be examined because it was dark and the lighting was not working. A day or two later, appellees again visited the property, and this time Glanski took a flashlight into the cellar. He found, however, that the back section was filled with junk and broken bottles, so that he could not move about. Using the flashlight, he looked as best he could from where he was standing, and thought it looked "pretty good." N.T. 12.

Graff instructed appellees not to discuss the sale with Ervine, because he was an "odd fellow." Appellees saw Ervine several times but never exchanged more than greetings with him. However, they repeatedly asked Graff whether the house was structurally sound, and were repeatedly told that it was sound and livable. Glanski specifically asked if there were termites. Graff replied, "I don't even know what a termite looks like." N.T. 12. On cross-examination Glanski was asked:

Q. It's safe to say, I believe, that Mr. Graff never told you that there were no termites in the house, he only said that the house was livable, isn't that correct?

A. No. Down at the barn, I asked him about termites, he said there was no ...


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