No. 50 and No. 84 April Term 1979, Appeals from the Order of the Court of Common Pleas of Allegheny County, Pa., Civil Div., at No. 4343 October Term, 1974.
Robert W. Beilstein, Pittsburgh, for Fowler-McKee, appellant at No. 50 and appellee at No. 84.
Thomas Levendos, Pittsburgh, for Johnston Truck Rental, appellee.
G. Robert Moore, Pittsburgh, for Graziano Const. and Aetna Cas. & Sur., appellee, at 50, and for appellant at 84.
Robert A. Cohen, Pittsburgh, for Charles Sanders, participating party.
Spaeth, Hoffman and Van der Voort, JJ.
[ 281 Pa. Super. Page 273]
These appeals arise from an order dismissing exceptions and entering judgment on a verdict entered by a judge sitting without a jury in an action in assumpsit.
The plaintiff below was Johnston Truck Rental Company, a trucking company; the defendants were Fowler-McKee Company, Inc., an excavating company; Graziano Construction Company, Inc., a general contractor; and Aetna Casualty and Surety Company, Graziano's surety. Graziano was general contractor for the construction of the Professional Quadrangle at the University of Pittsburgh; Fowler-McKee was one of Graziano's subcontractors, and was to do the excavating and backfill. Fowler-McKee and Johnston entered into a written agreement under which Johnston was to remove dirt from the site. The present action is to enforce that agreement.
The lower court entered a verdict for $22,521 with interest from June 1, 1974, in favor of Johnston, and against Fowler-McKee, Graziano, and Aetna. Since Fowler-McKee had agreed to indemnify Graziano, the court entered a verdict in the same amount, plus counsel fees and expenses, in favor of Graziano and against Fowler-McKee. Fowler-McKee had
[ 281 Pa. Super. Page 274]
filed three counterclaims against Johnston. On two of the counterclaims, the court entered a verdict in favor of Johnston; on the third, it entered a verdict of $450 in favor of Fowler-McKee.
Fowler-McKee, Graziano, and Aetna filed exceptions to the lower court's findings. On December 19, 1978, the lower court sustained the exceptions to the finding that Fowler-McKee had breached its contract with Johnston on June 1, 1974, and modified the finding and the verdict based on the finding to correct the date to May 28, 1974. The court dismissed all other exceptions. Fowler-McKee, Graziano, and Aetna have now appealed.*fn1
It is settled that "[w]hen a trial judge sits without a jury his findings of fact . . . have the weight of a jury verdict and cannot be disturbed on appeal unless they lack sufficient and competent evidential support. In such case, the party favored by the finding is entitled to have the evidence viewed in the light most favorable to him and to have all conflicts in the testimony resolved in his favor." Darlington Brick and Clay Products, Inc. v. Aino, 225 Pa. Super. 186, 187, 310 A.2d 401, 402 (1973). See also Courts v. Campbell, 245 Pa. Super. 326, 369 A.2d 425 (1976); Krobot v. Ganzak, 194 Pa. Super. 49, 166 A.2d 311 (1960). So viewed, the evidence in this case may be summarized as follows.
Johnston began hauling material from the construction site on March 5, 1974. Under its agreement with Fowler-McKee,*fn2 Johnston was to remove an estimated 53,976 cubic
[ 281 Pa. Super. Page 275]
yards of "excess material". It appears that Fowler-McKee had sent a copy of the site plan to an engineering firm, N.T. at 218, 7/12/77, and the 53,976 figure represented the firm's estimate of the amount to be removed, plus an additional estimate made by two officers of Fowler-McKee. N.T. at 218, 7/12/77. In addition, Johnston was to "accept excess materials in excess of the 53,976 cubic yards estimated if required by [Fowler-McKee] in order to complete its contract obligations," and was to ensure that "mud, dirt or other such materials [were] not deposited in or about the public roadways leading from the excavation site to the disposal site." Fowler-McKee agreed to pay Johnston $1.15 for each cubic yard of excess material ...