submitted: February 23, 1982.
FRANK E. STULZ AND HARRIET C. STULZ, H/W
WALLACE E. BOSWELL, HERBERT P. LEVINE, STANTON GRELLER AND CAST METAL MANUFACTURING COMPANY AND METAL & ALLOYS, CORPORATION. APPEAL OF WALLACE E. BOSWELL, STANTON GRELLER AND CAST METAL MANUFACTURING COMPANY
NO. 1778 Philadelphia, 1981, Appeal from the Judgment of June 23, 1981 of the Court of Common Pleas of Northampton County, Civil, Law, No. 1978-C-4684.
Donald P. Russo, Bethlehem, for appellants.
John Field Oldt, Easton, for appellees.
Cavanaugh, McEwen and Hoffman, JJ.
[ 307 Pa. Super. Page 517]
We here consider an appeal from a judgment in the amount of $7,011.95 entered in favor of the plaintiff-appellees. We affirm.
Appellees commenced this action by means of a complaint filed on December 28, 1978, in which they sought to recover accounts receivable which were assigned to them in connection with the sale in 1973 by the appellees to the appellants
[ 307 Pa. Super. Page 518]
of the stock of Cast Metal Manufacturing Company (Cast Metal). On February 8, 1979, appellants filed an answer and new matter in which they denied the claims pleaded in the complaint and on February 28, 1979, appellees filed a reply to new matter. A pre-trial conference was held on August 28, 1979, at which time appellants asserted a set-off of $4,400.00 against the claims of appellees. The appellants petitioned the court on September 10, 1979, for permission to file an amended answer in order to specifically plead the set-off as new matter to which appellees filed an objection. The learned President Judge Alfred T. Williams, Jr., ruled as follows:
AND NOW, this 7th day of November 1979, after conference with counsel and consideration of the defendants' petition to file an amended answer and counterclaim, the court will permit the original defendants to file an amended answer properly pleading the alleged set-offs to the various charges or accounts set forth in the complaint within 20 days from this date. The petition to file a counterclaim with respect to other matters or unrelated causes of action is denied.
Pursuant to this order, the appellants filed an amended answer and new matter on December 13, 1979, in which they averred that appellees had breached warranties in the 1973 agreement of sale and in which they listed forty items as setoffs. The majority of items were related to credits for the return of defective products that were sold prior to the change of ownership, but the appellants also alleged set-offs for salesmens' commissions earned prior to the sale of the corporation, costs related to a transmission repair to a company truck, credit card charges, taxes and the cost of Christmas gifts.
Appellees filed preliminary objections in the nature of a motion to strike on the ground that the majority of items set forth in the appellants' amended pleading had no relation to the claims made by the appellees and that, therefore, the amended answer and new matter violated the November 7, 1979 order of the court. The appellees also alleged that the
[ 307 Pa. Super. Page 519]
first thirty-five of the forty items listed by the appellants were barred by the statute of limitations since the events relating to these items took place on or before August 3, 1973, and the appellants did not request permission to file an amended answer and new matter until September 10, 1979.*fn1 The court, after argument, entered the following order upon the motion to strike:
AND NOW, this 9th day of May, 1980, after thorough review of all the pleadings, all New Matter in Defendants' Amended Answer which does not constitute a set-off to the various charges or accounts in the original complaint in accordance with the prior Order of Court of November 7, 1979, is hereby stricken from said Amended Answer and New Matter. Since a full, final and complete factual adjudication of exactly what New Matter must be stricken as falling within the purview of this Order cannot be made at this time, the issue is expressly reserved for presentation in a Motion for Judgment or for the trier of fact at the time of trial.
The distinguished Judge Franklin S. VanAntwerpen conducted a non-jury trial and ruled that the appellants owed the appellees $5,768.49 subject to a recoupment by appellants in the amount of $1,041.28 to be deducted from the judgment for the appellees.*fn2 Thus, a verdict in the amount of $4,727.21 plus interest to be computed thereon was rendered in favor of the appellees. The trial judge rejected the claims made by the appellants for affirmative relief since such relief was first sought in the amended answer and new matter filed after the six year statute of limitations had expired.*fn3
[ 307 Pa. Super. Page 520]
Appellees initially argue that the appeal should be quashed since the notice of appeal filed by the appellants erroneously stated that they were appealing from the June 18, 1981, order of the court en banc which denied and dismissed their exceptions to the verdict, rather than from the judgment in favor of the appellees which was entered on the docket on June 23, 1981. Appellees first brought this challenge to the jurisdiction of this court by means of a motion to quash and by order of December 11, 1981 this court denied the motion to quash, "without prejudice to appellants' right to file an amended notice of appeal identifying the appealable order of 6/23/81." Pursuant to this order the appellants filed an amended notice of appeal which properly listed the June 23 judgment as the appealable order. Thus, since the technical error has been corrected, there is no merit to the contention that this court lacks jurisdiction.
The primary focus of the argument of the appellants is concerned with the decision of the trial judge to reject the items alleged as set-offs by the appellants as a counterclaim. Appellants argue: (1) that the set-offs in their amended pleadings only amplified their original answer and new matter and that the trial judge erred when he decided that most of the items were barred by the statute of limitations; and (2) that the judge improperly limited the claims of appellants to those which could be classified as a recoupment. In order to address these contentions, we must examine the law of this Commonwealth with respect to: (1) the counterclaims of set-off and recoupment; and (2) the application of the statute of limitations to amended pleadings.
A counterclaim is defined as a "claim presented by a defendant in opposition to, or deduction from, the claim of the plaintiff"; a counterclaim encompasses both a set-off and a recoupment. 6 Standard Pennsylvania Practice 2d § 29:2. A recoupment differs, however, from a set-off. A recoupment concerns solely the claim asserted by the plaintiff and no affirmative relief may be obtained by the defendant,
[ 307 Pa. Super. Page 521]
to the successful party must be taken as true and all unfavorable inferences rejected. (Citations omitted).
Appellants specifically argue that the trial judge did not properly interpret the contract of sale and also incorrectly concluded that the appellants stipulated that they "owed" the appellees $5,768.49. Appellants assert that they did not stipulate that they "owed" this amount, but rather, stipulated only that they had "received" this amount in accounts receivable following the sale of the business.
It is true that the appellants did not stipulate that they unconditionally "owed" the appellees $5,768.49; but the parties did stipulate (1) that the appellants received $10,019.97 on the dates and for the reasons claimed by the appellees, and (2) that the appellees were entitled to a credit of $4,251.48 for accrued payroll for the week prior to closing; the net figure is, of course, $5,768.49. The only issue that remained for decision at trial concerned the set-offs which the appellants claimed were owed to them. Contrary to the assertions of appellant, there are no contractual provisions which would provide a defense to the claim of appellants for the accounts receivable.
It is clear, contrary to the assertion of appellants that the trial judge relied solely on the stipulation, that the decision of the court rested upon the following conclusions: (1) that the stipulation entered into by the parties revealed the sum of $5,768.49 was due appellees; (2) that the set-offs asserted by appellants were barred by the statute of limitations; and (3) that appellants were, under the doctrine of recoupment, entitled to a credit of $1,041.28. Our examination of the record as well as our study of the applicable law leads us to conclude that the determination of the court was proper and correct.
Appellants next contend that the court erred by permitting the admission into evidence of a letter dated February 22, 1972, from the former attorney for appellants to the former attorney for appellees. The appellants contended at trial that the letter was immaterial and irrelevant, but the
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trial court admitted the letter over these objections. Appellants now argue that the letter was inadmissible for the reason that it was hearsay and not the subject of any exception to the hearsay rule. Where a litigant objects to evidence on appeal on a different ground than that which was asserted at trial, we will not consider the new objection since it has not been properly preserved for appellate review. Estate of Cusat, 470 Pa. 418, 368 A.2d 698 (1977); Martin v. Soblotney, 296 Pa. Super. 145, 442 A.2d 700 (1982).
The final grievances of appellants relate to the computation of interest on the judgment. There is no merit to any of these assertions.