Nos. 402 and 415 April Term, 1972, Appeal from the Order of the Court of Common Pleas of Allegheney County, Civil Division at No. 1053 October Term, 1974.
John J. McLean, Jr., Pittsburgh, for appellant.
James H. Joseph, Pittsburgh, for appellee.
Hester, Montgomery and Lipez, JJ.
[ 278 Pa. Super. Page 204]
Plaintiff Allegheny Ludlum Industries, Inc., (hereinafter referred to a "ALI"), entered into a contract with the Defendants, CPM Engineers, Inc. and Schindall Associates, Inc. (hereinafter referred to as "CPM-Schindall"), whereby CPM-Schindall was to provide a program to ALI which was designed to reduce maintenance costs in ALI's steel making operations at its Brackenridge, Pennsylvania works. As a result of various problems between the parties concerning that contract, ALI instituted an action in assumpsit for $240,000 in the Court of Common Pleas in Allegheny County. CPM-Schindall entered a counterclaim for the amount of $47,360. In May, 1978, a jury returned a verdict of $180,000 plus accrued interest, for the Plaintiff, ALI and also for the Plaintiff on Defendant's counterclaim. Thereafter, CPM-Schindall moved for judgment n. o. v. and for a new trial. A three-judge panel granted CPM-Schindall's motion for a new trial limited to Plaintiff's claims but denied their motion for judgment n. o. v. In its Opinion, the lower court panel explained that it was granting a new trial ". . . in the interest of justice . . ." because ALI's evidence followed a theory of recovery different from that set forth in the Complaint. The panel expressed the view that such circumstances had denied the Defendants the essence of fair play and due process by inhibiting their preparation and presentation of a defense.
ALI has appealed the grant of a new trial by the lower court. CPM-Schindall has filed a cross-appeal on the denial of a judgment n. o. v.*fn1 Each discusses several issues, including the issue of whether or not the lower court erred in granting a new trial on the basis of a variance between the allegations in ALI's Complaint and its proof at trial. Our attention must initially be directed towards that issue.
It has long been held that the proof in a case must correspond with the statement of the cause of action by the plaintiff. Long v. Lehigh Coal and Navigation Co., 292 Pa. 164,
[ 278 Pa. Super. Page 205140]
A. 871 (1928). The rule against a variance between allegations and proof is based upon the sound reasoning that a defendant should not be taken by surprise at trial by being called upon to defend either against matters of which he had no notice in the pleadings, or against a different cause of action. Pennsylvania Railroad Co. v. City of Pittsburgh, 335 Pa. 449, 6 A.2d 907 (1939); Borough of Schuykill Haven v. Bolton, 190 Pa. Super. 157, 153 A.2d 504 (1959). It has been stated that one cause of action cannot be averred and another proven at the time of trial. Glick v. Peoples-Pittsburgh Trust Co., 136 Pa. Super. 349, 7 A.2d 364 (1939). The wrong which may be proved must be the wrong which has been alleged, not merely another wrong in the same legal category. Aland v. Post Gazette Publishing Co., 337 Pa. 259, 10 A.2d 5 (1940). Of course, a mere technical variance between the allegation and the proof, which causes no real harm to the defendant, is immaterial. See Ellis v. Greenbaum Sons Investment Co., 307 Pa. 77, 160 A. 702 (1932). It has been held by this Court that even though the allegata and probata may not precisely agree, if the variance did not affect the trial on its merits, or set up different cause of action, or impose any different burden on the defendant, the variance would not be considered material. Higgins Lumber Co. v. Marucca, 159 Pa. Super. 405, 48 A.2d 48 (1946); Osborne v. Victor Dairies, Inc., 138 Pa. Super. 117, 10 A.2d 129 (1940).
With these concepts in mind, we must examine ALI's Complaint as well as its proof at trial. The Complaint, after identifying the parties, contends that ALI entered into a contract with CPM-Schindall on September 29, 1972. Under that contract, the Defendants agreed to design and install a maintenance labor cost reduction program in ALI's plant that would result in an annual savings of $625,000 the first year of operation. The Complaint further alleged that the agreement contemplated that the program would be installed and operative by November, 1972, and that CPM-Schindall would receive $240,000 for the services to be provided. ALI alleged that it complied with all of the terms of the
[ 278 Pa. Super. Page 206]
agreement and cooperated with the Defendants from the date of the contract through November 9, 1973. ALI contended that during this time, its maintenance expenditures increased rather than decreased for the period between September 29, 1972 and November 9, 1973. The Plaintiff averred that on November 9, 1973, it ordered CPM-Schindall to cease operations at the plant, and demanded that the ...