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filed: October 30, 1981.


No. 2903 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action-Law Division, of Berks County, November Term 1970, No. 42


David M. Kozloff, Reading, for appellant.

Lewis R. Long, Bethlehem, for appellees.

Hester, Disalle and Montgomery, JJ.

Author: Montgomery

[ 292 Pa. Super. Page 144]

The Appellant in the instant case*fn1 is one of the original defendants, Maryland Casualty Company (hereinafter referred to as "Maryland Casualty"). The case was tried in the lower court before a jury, which returned a verdict for the plaintiff against Maryland Casualty, and verdicts in favor of the other original defendant and the additional defendant. Maryland Casualty filed a motion for judgment n. o. v., or in the alternative, for a new trial. The lower court granted a new trial, but Maryland Casualty has filed the instant appeal, claiming that it was entitled to judgment n. o. v.

It is well-established that when a motion for judgment n. o. v. or a new trial is filed, and the lower court grants the new trial but denies the judgment n. o. v., the appellate court is limited to a determination of whether there has been an abuse of discretion by the lower court. Ellerbe v. Steinman, 162 Pa. Super. 440, 58 A.2d 202 (1948); Standard Oil Company of New Jersey v. Graham Oil Transport Corp., 157 Pa. Super. 41, 41 A.2d 414 (1945). However, if the record clearly establishes that the moving party was

[ 292 Pa. Super. Page 145]

    entitled to judgment n. o. v., the grant of a new trial in such circumstances may be found to have been an abuse of discretion on the part of the lower court. See Matevish v. School District of Borough of Ramey, 167 Pa. Super. 313, 74 A.2d 797 (1950), where there were no factual issues for determination by a jury. Further, we must be mindful that judgment n. o. v. will be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper, and any doubts should be resolved in favor of the verdict. See Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980); Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Bottorf v. Waltz, 245 Pa. Super. 139, 369 A.2d 332 (1976). In the resolution of this appeal, we must consider the evidence available to the lower court in the light most favorable to the verdict winner, giving it the benefit of every reasonable inference of fact arising therefrom, and we must resolve any conflict in evidence in the favor of the verdict winner. See Broxie v. Household Finance Company, supra.

Viewing the evidence in that light, the record shows that the defendant Simmons & Greer, Inc. (hereinafter referred to as "Simmons") was a general contractor for various building projects. In late January, 1969 Simmons entered into a contract with the General State Authority for the erection of a gymnasium at Kutztown State College in Berks County. Pursuant to the Public Works Contractors Bond Law,*fn2 Simmons obtained performance and payment bonds for the project, from Maryland Casualty. During the course of the project, Simmons entered into a contract with Simpson Steel Products Company, Inc.*fn3 (hereinafter referred to as "Simpson"), for certain work on the project. In turn, Simpson hired the plaintiff, Posh Construction, Inc. (hereinafter

[ 292 Pa. Super. Page 146]

    referred to as "Posh"), to furnish labor, materials, and equipment to Simpson for the project. Thereafter, the Plaintiff commenced work on the gymnasium construction in September, 1969. Posh submitted an initial bill to Simpson for partial work completed on the project and Simpson paid the bill by check. However, the Plaintiff's next billing to Simpson was not paid and Posh approached the general contractor, Simmons, about the problem. Posh did this by orally notifying the Simmons' field superintendent at the construction site that it would not continue on the job unless it was paid, as Simpson had not made a payment for work completed to that date, in accordance with the second billing by Posh. Thereafter, a representative of the plaintiff was summoned to Simmons' home office in Philadelphia. At that time, Posh's representative received a check from Simmons in the amount of just over $11,000.00, which check was made payable to both Simpson and Posh as co-payees. The Posh representative obtained appropriate signatures on the check from Simpson and deposited the proceeds of the check in its own account. As the work progressed further, Simmons issued another check for almost $21,000.00, in identical circumstances, for the benefit of the plaintiff. In the instant action, Posh claimed a balance due of just over $14,000.00, representing both the final payment on its work for Simpson on the project, and also including several hundred dollars for work performed directly at the request of Simpson, which work was not covered by plaintiff's contract with Simpson.

The plaintiff filed the instant action claiming it supplied its labor, material and equipment in reliance upon Simmons' promise to pay any debts of Simpson to the plaintiff in connection with the project. The plaintiff claimed that Maryland Casualty was liable to it under Simmons' payment bond, and in that regard, the plaintiff's claims were based upon its rights under the Public Works Contractors Bond Law of 1967. In describing the types of bonds required, that ...

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