No. 962 April Term, 1978, Appeal from Order in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 76-15833
Robert L. Campbell, Pittsburgh, for appellant.
Richard F. Welch, Pittsburgh, for appellees.
Price, J., and Hester and Montgomery, JJ. Price, J., files a dissenting statement.
[ 277 Pa. Super. Page 493]
Presently before the court is Appellant's appeal from the entry of a money judgment entered upon a directed verdict for Appellees. Following the denial of Appellant's Motion for New Trial, this timely appeal followed.
We reverse and remand for a new trial.
The facts may be briefly summarized as follows: Appellant-maker entered into a written contract with Appellees-payees whereby appellees were to install asphalt paving at Appellant's apartment building parking lot. The paving job was completed in May, 1975, and appellant was to have paid the price in full upon completion.
Payment in full upon completion was not made however, and on September 10, 1975, Appellant made payment to Appellees, by tendering to them a check for $6,500.00 and a promissory note of even date in the face amount of $7,593.00 and bearing interest at 10% per annum. The note was due six (6) months from its date. Appellees agreed to this payment schedule.
Payment was not made by Appellant-maker when the note became due, and subsequently, appellees-payees sued on the promissory note.
Appellant filed an Answer and New Matter to Appellees' Complaint in Assumpsit wherein Appellant alleges
[ 277 Pa. Super. Page 494]
"8. Subsequent to September 10, 1975, it became apparent to Defendant that the work and materials provided by the Plaintiff to the Defendant and the installation of asphalt made by the Plaintiffs was improperly done, defective and deficient. Thereby resulting in a failure of consideration in that the binder and top course of the pavement was insufficient and un-uniform thickness and improperly installed and furthermore, in that the base of slag was not properly installed compacted and was not of a uniform thickness throughout the installation."
"9. As a direct and approximate result of Plaintiff's deficient and improper installation of materials thereby constituting a breach of his obligations to the defendant. The defendant's pavement has become cracked and has lifted up and split in major portions of the paved area and will in large measure be necessary to replace at the great cost and effort of the Defendant, and such costs of replacement far exceeds the value of the note given on September 10, 1975. Thereby constituting a full and complete failure of consideration and a total defense to this action."
Thereafter Appellees filed a Reply to New Matter wherein they denied that the materials and installation were improper, defective and deficient; rather, Appellees claimed that the materials and paving work was done in a proper and workmanlike manner.
Succinctly stated, Appellees brought suit on the note; Appellant attempted to defend on the underlying asphalt contract.
The case was tried before Judge John P. Flaherty and a jury on September 14, 1977. Appellee John Sciarretti testified for the Appellees. In response to objections by appellees, appellant Paulick's testimony was strictly limited to the circumstances surrounding the execution of the note. Specifically the lower court precluded appellant and his available expert witness(es) from giving testimony concerning ...