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ROBERT L. WILSON v. HIGHWAY SERVICE MARINELAND AND DONALD MUELLER (01/18/80)

filed: January 18, 1980.

ROBERT L. WILSON
v.
HIGHWAY SERVICE MARINELAND AND DONALD MUELLER, APPELLANTS



No. 379 October Term, 1979 Appeal from the Order in the Court of Common Pleas of Bucks County, No. 77-7445.

COUNSEL

Allen L. Feingold, Philadelphia, for appellants.

Nicholas J. Scafidi, Philadelphia, for appellee.

Price, Wieand*fn* and Van der Voort, JJ.

Author: Price

[ 274 Pa. Super. Page 393]

The instant appeal is from an order in appellee's action in replevin. Finding that the court erred in awarding appellee $2000 in special damages for the unlawful detention of his boat, we affirm in part and reverse in part the order of the trial court.

On or about May 2, 1977, appellee damaged his boat during a pleasure outing by getting saltwater into the engine. On May 2, 1977, the boat was taken to Highway Service Marineland [HSM] for repairs. On numerous occasions, appellee called appellant Donald Mueller, the owner of HSM, to inquire as to an estimate for the repairs. During one call, Mueller stated that an estimate was not yet possible since he was awaiting a reply from a supplier regarding the price of a new engine for the boat. Appellee informed Mueller that he would only make reasonable payment for the services that had already been performed and that he desired to take his boat to a different repair shop.

On June 3, 1977, appellee went to HSM and was presented a bill for $1319.70, the itemization of which was as follows: $200.00 for consultation with appellee's insurance adjuster; $120.00 for preparation of the estimate; $150.00 for preparation of parts to prevent further damage; $775.00 for storage fees ($25.00 per day for 31 days); and $74.70 for sales tax.

[ 274 Pa. Super. Page 394]

Appellee refused to pay this amount and instead offered to pay a fee for the services that had been reasonably performed, although no specific figure was mentioned. Mueller refused to modify the bill or to relinquish possession of the boat, and on August 3, 1977, appellee filed a complaint in replevin requesting return of the boat and damages for its unlawful detention. Appellants filed an answer and counterclaim requesting dismissal of appellee's claim and an award for appellants in the amount of $470.00 (representing the $200.00 consultation fee, the $120.00 fee for preparing the estimate and the $150.00 fee for actual repairs) plus a storage fee of $25.00 per day. On June 30 and September 27, 1978, trial was held before the Honorable George T. Kelton. At the conclusion of trial, Judge Kelton found that appellants' claim for $1319.70 was without foundation, and that their assertion of a lien in this amount and the retention of the boat was unlawful and improper. The court ordered the return of the boat and awarded appellee the sum of $2000 as damages for the unlawful detention. Appellants were awarded $280 on their counterclaim as compensation for their efforts in preserving the engine from further damage and displaying the parts to appellee's insurance agent. Exceptions were filed and dismissed, and the verdict was made absolute on January 31, 1979. Appellants appeal from that verdict alleging various instances of error in the trial court.

Appellants first assignment is that the trial court erred in refusing to grant a continuance at the June 30, 1978 trial on the basis of the poor physical condition of appellants' counsel, who had recently been involved in a motorcycle accident. Contrary to appellants' contention,*fn1 a review of the notes of testimony discloses that beyond explaining to the court the reason for his poor physical condition and stating that he was in court only because no other attorneys

[ 274 Pa. Super. Page 395]

    from his office were available, appellants' counsel never entered a formal request for a continuance. Appellants' first ...


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