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DORIS BACHMAN v. RUTH ARTINGER (02/27/81)

filed: February 27, 1981.

DORIS BACHMAN, APPELLANT,
v.
RUTH ARTINGER, T/A CRAFTON KENNELS



No. 4 April Term, 1979, Appeal from the Judgment in the Court of Common Pleas of Allegheny County, Civil Division, No. 3216 of 1977.

COUNSEL

Michael A. Della Vecchia, Pittsburgh, for appellant.

John G. Kish, Pittsburgh, for appellee.

Price, Hester and Cavanaugh, JJ.

Author: Price

[ 285 Pa. Super. Page 60]

In accordance with the adage that "every dog has its day," we are called upon in this appeal to resolve a dispute concerning man's best friend. On April 20, 1976, appellant, Doris Bachman, purchased a miniature schnauzer puppy from appellee, Ruth Artinger, trading as Crafton Kennels. The purchase price was $165.00. On April 19, 1977 appellant commenced the instant action in trespass, alleging that appellee had fraudulently misrepresented that the puppy was in good physical health at the time of the sale and also that the puppy was a pedigreed dog registrable with the American Kennel Club.*fn1 Appellant demanded punitive damages based upon the alleged misrepresentations.

A board of arbitrators awarded appellant $1,000, which award was appealed. The case was subsequently tried do novo in the court of common pleas on July 7, 1978. The trial judge, sitting without a jury, rendered a verdict for appellee on July 10, 1978. On December 28, 1978, appellant's timely exceptions were dismissed by the court below, sitting en banc, and judgment was entered on January 3, 1979. This appeal ensued. Appellant now contends that the verdict was against the weight of the evidence and assigns error to several evidentiary rulings by the trial court. Finding these contentions meritless, we affirm the judgment entered below.

Appellant first maintains that she is entitled to a new trial because the findings of the trial judge were against the weight of the evidence. It is well established in this Commonwealth that the findings of fact of a trial judge, sitting without a jury, if approved by the court en banc, have the force and effect of a jury verdict and, if based upon sufficient evidence, will not be disturbed on appeal unless they

[ 285 Pa. Super. Page 61]

    are manifestly erroneous. See, e. g., Penneys v. Pennsylvania Railroad Co., 408 Pa. 276, 183 A.2d 544 (1962); Denby v. North Side Carpet Cleaning Co., 257 Pa. Super. 73, 390 A.2d 252 (1978); Floravit v. Kronenwetter, 255 Pa. Super. 581, 389 A.2d 130 (1978). This rule has particular application to those findings which are predicated upon the credibility of witnesses and the weight accorded to their testimony since the trial judge has the unique opportunity to observe the witnesses' demeanor and to assess their credibility. See Claughton v. Bear Stearns & Co., 397 Pa. 480, 156 A.2d 314 (1959); Liebowitz v. Ortho Pharmaceutical Corporation, 224 Pa. Super. 418, 307 A.2d 449 (1973); Jones v. Steinberg, 178 Pa. Super. 517, 115 A.2d 803 (1955). Furthermore, in such a 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." Courts v. Campbell, 245 Pa. Super. 326, 331, 369 A.2d 425, 428 (1976), quoting Darlington Brick and Clay Products, Inc. v. Aino, 225 Pa. Super. 186, 187, 310 A.2d 401, 402 (1973).

Applying these principles in the instant case, we perceive no reason to disturb the verdict rendered below. The trial judge concluded that the puppy sold by appellee to appellant was healthy at the time of sale and, furthermore, that the dog was, and continues to be, registrable with the American Kennel Club. The record amply supports these conclusions. Although appellant testified that after she received the puppy it vomited and cried at night, appellee testified that on the date of the sale, April 20, 1976, the puppy was "in normal good health, [and] had no problems." (N.T. 69). Appellee, who operates a kennel and, presumably, was familiar with canine behavior, further explained that the symptoms displayed by the puppy shortly after its delivery to appellant were not unusual in puppies that have undergone a change of environment. Both the trial judge and the court en banc accepted appellee's explanation of the puppy's behavior and found that the dog's health problems commenced after the sale and delivery of the animal.

Similarly, there was sufficient evidence to sustain the finding that the puppy was ...


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