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filed: August 13, 1982.


NO. 184 OCTOBER TERM, 1979, Appeal from Order of the Court of Common Pleas of Lancaster County to No. 196, December Term, 1975, Civil Action, Law.


Daniel H. Shertzer, Lancaster, for appellant.

Joseph J. Lombardo, Lancaster, for appellees.

Spaeth, Stranahan and Sugerman, JJ.*fn* Spaeth, J., files a concurring statement.

Author: Sugerman

[ 303 Pa. Super. Page 300]

The question we address in this Appeal is whether a jury returned a verdict in both or only one of two civil actions consolidated and assertedly tried together. The lower court found that a verdict in only one of the two actions had been returned and thereupon molded the verdict accordingly.

From the record we observe that Appellees, Charles A. Mayo and Vincent G. Corradino, leased a building to Appellant, House of Pasta, Inc. on October 20, 1971 for a term of ten years. On or about May 22, 1975, the premises were destroyed by fire, and on the same day, Appellant vacated the premises. On May 27, 1975, four days subsequent to Appellant's removal, Appellees confessed judgment under the lease against Appellant in the sum of $66,953.67, representing rental for the balance of the term of the lease, and counsel fees ("Confessed Judgment Action"). A few days later, Appellant filed a petition to open the judgment and the lower court granted the prayer of the petition, opened the judgment and let Appellant into a defense.

[ 303 Pa. Super. Page 301]

At the date the lease was executed by the parties, Appellant posted a security deposit with Appellees in the sum of $5,866.64. At a date subsequent to Appellant's vacating the leasehold premises, Appellant demanded a return of the security deposit. Appellees refused, and on December 29, 1975, Appellant filed a complaint in assumpsit alleging a determination of the lease by reason of the fire and seeking a judgment in the sum of $5,866.64, representing the amount of the security deposit ("Assumpsit Action"). Appellees filed an answer containing new matter and a counterclaim. In their new matter, Appellees alleged that the fire was caused either by an intentional act on the part of Appellant or by Appellant's gross negligence and that as a result, Appellant's attempt to terminate the lease was unavailing.

In their counterclaim in the Assumpsit Action, Appellees asserted a variety of claims against Appellant, including a claim in the sum of $5,835.45 representing unpaid taxes and sewer rentals, removal of fixtures and damages to the premises. Appellees also claimed rental allegedly due in the sum of $32,806.40, or a counterclaim in the total sum of $38,641.85. A jury trial was demanded and the parties agreed prior to trial to consolidate both the Confessed Judgment Action and the Assumpsit Action for trial.

Trial commenced on June 20, 1976 and concluded on June 23, 1976. In the course of its final instructions to the jury, the trial court charged in relevant part, as follows:

"THE COURT: Members of the jury, you are trying in this matter two cases. I'm going to try to clarify the issues as best I can for you here, but what I want to say to you first is that in the first instance you are trying the case of Charles A. Mayo and Vincent Corradino versus the House of Pasta, Incorporated. In the second case you are trying the case of House of Pasta, Incorporated, versus Charles A. Mayo and Vincent G. Corradino.

[ 303 Pa. Super. Page 302]

Quite often in civil cases such as this there is a pleading and then there is an answer and a setoff in counterclaim, so you are only trying one case; however issues arose here between these parties that required the trying of two Page 302} cases. I want you to keep that in mind when you go to your room. I'll instruct you a little later on the verdict.

Now as to each plaintiff, in the one case, Mayo is the plaintiff, and in the other case, the House of Pasta is the plaintiff. In several cases such as these the plaintiff has the burden of proving those contentions which entitle him to relief. When a party has the burden of proof on a particular issue, his contention on that issue must be established by a fair preponderance of the evidence.

Now in the first case, that is the one of Mayo and Corradino versus the House of Pasta, they have the burden of proving the following propositions.

The plaintiff contends -- both plaintiffs contend -- there was such a binding agreement that has been established by the evidence, and upon that they demand redress. The defendants in each case have a different view.

Members of the jury, I spoke to you a little while ago about the burden of proof. Now the suit of Mayo and Corradino against House of Pasta, they have the burden as plaintiffs of proving they are entitled to the following claim which they have testified to, and which you will determine when you go to your jury room.

Testimony was offered whether or not a verbal agreement was made at the time of the written arrangement for the House of Pasta for procuring a beer license. There is testimony both indicating this was agreed to and testimony denying this arrangement likewise. The plaintiffs then discuss other items.

Now those other items are as follows: They are claiming rent from April and May of 1975. That's two months rent or a month and up until May the 22nd. That comes to a figure of twelve hundred and fifty-three dollars. Now here's where you have to make a reconciliation.

[ 303 Pa. Super. Page 303]

The testimony is that they offered to pay that rent I think three days before the end of May, claiming that they had until the end of May to pay it, and then it was refused. On the other hand the landlords, Mayo and Corradino, claimed they entered a judgment against them, a large judgment, which they are not now trying to collect because that's for the balance of the rent for a long term, and therefore there wasn't a proper tender of that rent.

You must find out whether there was a tender or wasn't. If there was no proper tender, then the plaintiff would be entitled to the twelve hundred fifty-three dollars. If there was a tender, and it was not accepted, then that would make it a different story.

Now we then get to the rent of January 1st, '76 at two thirty-three a month. Then the next year you remember the new tenant was going to pay an extra hundred dollars. They are claiming thirteen thirty for that. Now you must determine whether, when the lease, the lease says, and you'll have that lease with you when you go out as an exhibit, that if the property becomes untenantable, and obviously it was untenantable if there was serious fire and it isn't repaired in six months, the term is cancelled. If that is the case, then the plaintiff would not be entitled to that -- that is Mayo and Corradino would not be entitled to that sum.

Now the sewer charge is a hundred twenty dollars. There was testimony that was due, and the taxes were seventy-nine -- that was due. The damage to the building was testified to. It was eleven hundred and fifty dollars. The main claim, of course, is the thirty-one hundred and forty dollars claimed by Mayo and Corradino for that extra hundred dollars, so if you resolve the fact there was to be a hundred dollars paid, which is in dispute as I said, then you can allow that also on the claim of Mayo and Corradino.

Now on the other hand, we get to the claim of House of Pasta. Now theirs is a single item which is fifty-eight hundred and ...

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