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filed: November 5, 1982.


No. 641 April Term, 1979, Appeal from the judgment of the Court of Common Pleas of Allegheny County, Civil Division No. 869 April Term, 1970, Sur Mechanic's Lien No. 86 January Term, 1970.


Edward C. Leckey, Pittsburgh, for appellants.

Anthony J. Martin, Monroeville, for appellee.

Price, Brosky and Montgomery, JJ.

Author: Price

[ 306 Pa. Super. Page 309]

This is the second time this mechanic's lien has been before this court. In Mar Ray, Inc. v. Schroeder, 242 Pa. Superior Ct. 14, 363 A.2d 1136 (1976), we reversed the Court of Common Pleas of Allegheny County and held that the claim by Mar Ray, Inc. ("Mar Ray"), appellee herein, withstood the preliminary objections based on a waiver of lien clause filed by the appellants herein. A jury trial before the Honorable John P. Flaherty followed*fn1 and a verdict was returned for appellee in the full amount of its claim of $60,848.33. Appellants filed a motion for new trial and a motion for judgment n.o.v., both of which were denied. This appeal followed. We affirm the trial court.

[ 306 Pa. Super. Page 310]

The documentary evidence and recorded testimony of this case reveal a tangled morass of business dealings by appellants regarding the subject property located in the 26th Ward of the City of Pittsburgh known as Village in the Park to which they held a ninety-nine year land lease. Simply stated, on May 21, 1968 appellants contracted with the Arkay Construction Company ("Arkay") for the construction of an apartment complex on the aforementioned property. A waiver of liens agreement was recorded under this contract in the Office of the Prothonotary of the Court of Common Pleas of Allegheny County. Thereafter, on August 1, 1968, appellee executed a contract with Arkay to perform carpentry work in connection with the project, wherein appellee was designated the "subcontractor" and appellant the "contractor" and wherein appellee agreed to waive its right to lien.

On October 28, 1969, pursuant to the Mechanics' Lien Law, Act of August 24, 1963, P.L. 1175, No. 497, 49 P.S. 1101 et seq., appellee filed a Mechanic's Lien claim against appellants.*fn2 Therein, and in its subsequent complaint incorporating the Mechanic's Lien Claim, Mar Ray claimed, first, that Arkay was, in fact, controlled and owned by appellants and was used "as an agent, vehicle, or conduit" for the purpose of entering contracts to construct the buildings in Village in the Park and, second, that Arkay abandoned the job on June 15, 1969 at which time Mar Ray completed its carpentry work after receiving the oral promise of appellant Albert B. Starr to pay Mar Ray any and all sums due it for work and labor performed on the project.*fn3

[ 306 Pa. Super. Page 311]

In their first allegation of error, appellants strenuously argue that the admission of evidence and instructions to the jury on the issue of whether Arkay and appellants are a single entity*fn4 were erroneous because (1) this court's remand order restricted the trial to the issue of the existence of the oral contract with Starr, and, (2) the trial court acted improperly in instructing the jury on any reliance-related issue.

We cannot agree with appellants that this court's opinion in Mar Ray, Inc. v. Shroeder, 242 Pa. Superior Ct. 14, 363 A.2d 1136 (1976), restricted the scope of the trial on the merits solely to the issue of whether the lien was filed pursuant to the oral contract with appellant Starr which did not contain a waiver of liens, rather than pursuant to Mar Ray's original contract with Arkay which did contain such a waiver. We were quite specific in stating that the only issue decided was that Mar Ray's claim withstood the preliminary objections based on the waiver:

On this appeal, we do not decide the validity of appellant's [Mar Ray's] cause of action on the merits, nor do we decide the validity of any defense appellees may have on the merits . . . . The narrow question decided today is whether appellant's claim can withstand appellee's preliminary objections. We have decided the narrow question in favor of the appellant.

Id., 242 Pa. Superior Ct. at 17-18, 363 A.2d at 1137-1138. No singular evidentiary issue was argued before this court or disposed of by this court such that claims or arguments would be waived if not raised as was the case in Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977). We held only that the lower court erred in dismissing the claim

[ 306 Pa. Super. Page 312]

    before affording Mar Ray the chance to prove its allegations.*fn5 Mar Ray, Inc. v. Schroeder, supra. Therefore, we hold that admission of evidence regarding the relationship between appellants and Arkay was not error on this ground.

Nor can we agree that the trial court's charge to the jury pertaining to the issues surrounding appellee's reliance on Arkay's recorded no-lien agreement was so prejudicial as to require a new trial. Assuming, arguendo, that the submission of the evidence on a reliance theory was error, the charge also instructed the jury under the theory of a second contract which defendants concede was proper. In determining whether or not prejudicial error has occurred in the instructions of a court to a jury, the entire charge must be read. James v. Ferguson, 401 Pa. 92, 97, 162 A.2d 690, 693 (1960); Buchecker v. Reading Co., 271 Pa. Superior Ct. 35, 53, 412 A.2d 147, 156 (1979); Hajduk v. Fague, 200 Pa. Superior Ct. 55, 62, 186 A.2d 869, 873 (1962). We find that the lower court properly instructed the jury on the oral contract between Mar Ray and appellant Starr in accordance with the evidence pertaining thereto so as to sustain the findings of the jury despite any possible error in the charge relating to reliance issues.

The court's instructions were consistent with the rule that when the evidence is conflicting as to whether a new contract has been made, relative to the filing of a mechanic's lien, the case is for the jury to determine whether such a new contract was made. John B. Kelly, Inc. v. Phoenix Plaza, Inc., 249 Pa. Superior Ct. 413, 378 A.2d 363 (1977); Pagnacco v. Faber, 221 Pa. 326, 70 A. 754 (1908); Spring Brook Lumber Co. v. Watkins, 26 Pa. Superior Ct. 199 (1904). Judge Flaherty charged:

[ 306 Pa. Super. Page 313]

    was the understanding of the parties relating to that contract if, in fact, there was such a contract . . . . If it was merely a promise to pay if Arkay did not pay, then that would not be lienable. If, on the other hand, it was a new, wholly distinct contract, an independent contract between Mar Ray and Mr. Starr then it would be your function to determine the contents of that contract, if such as there be one [containing] a waiver of liens and you would have to consider all of the evidence you have heard to determine such was in fact the case.

(R. 613a-614a).*fn6

In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, is considered in the light most favorable to the verdict winner. Chambers v. Montgomery, 411 Pa. 339, 341, 192 A.2d 355, 356 (1963). Viewed in this light, the evidence weighs considerably in favor of the appellees. At the time of the second contract Arkay was already four to five months behind in payments to Mar Ray and appellants themselves were having great difficulty in their attempts to communicate with Arkay's president. (R. 296a). Mar Ray's president testified that he could not have kept his crews on the job but for the promise he received from appellant Starr. (R. 304a). Furthermore, evidence concerning appellants' heavy financial investment in the project along with evidence of their close relationship with Arkay*fn7 lent credence to appellee's argument

[ 306 Pa. Super. Page 314]

    that appellant Starr had a tremendous personal stake in persuading Mar Ray to return to work and in having the project completed by September 1. We are unable to say, therefore, that the jury could not have found a valid mechanic's lien based on Mar Ray's agreement with appellant Starr to be compensated for all sums due it for labor performed on the project.*fn8

Finally, appellants argue that they are entitled to a new trial because the president of Mar Ray testified falsely at trial in his denial that the words "payment in advance for work from July 7 to completion of contract as per Arkay Const. Co. Inc." appeared on a check at the time of its receipt from Starr on July 2, 1969.

Appellants claim that because they "did not anticipate . . . false testimony . . . on a point such as this where indisputable documentary proof is always available," brief for appellants at 45, they did not have the bank's copy of the check ready to produce at trial. However, after trial appellants did request and receive the bank's copy of the check verifying

[ 306 Pa. Super. Page 315]

    that the disputed writing was present on the check when delivered to Mar Ray.

In support of their argument for new trial, appellants cite cases granting the motion where a party or witness has willfully and admittedly perjured essential testimony, Blake v. Marinelli, 357 Pa. 314, 53 A.2d 550 (1947) (per curiam); Kuzma v. Kuzma, 191 Pa. Superior Ct. 295, 156 A.2d 884 (1959), or where evidence of the perjury was not in existence until after trial and such evidence was factually compelling so as to justify a new trial. McCabe v. Pa. Railroad Co., 311 Pa. 229, 166 A. 843 (1933).

The circumstances of the case now before us, however, are not sufficiently similar to these cases to dissuade us from applying the rule in Hornick v. Bethlehem Mines, Corp., 310 Pa. 225, 228, 165 A. 36, 37 (1933):

It is well established that in order to grant a new trial on the basis of after-discovered evidence, the evidence must have been discovered since the trial and be such as could not have been obtained at the trial by the use of reasonable diligence; it must not be simply cumulative or merely to impeach the credibility of the witness.

In addition, the granting or refusal of a new trial based on after-discovered evidence is an area addressed to the sound discretion of the court and the exercise of this discretion by the court will be reversed only where it has been clearly abused. Helmig v. Rockwell Manufacturing Co., 389 Pa. 21, 131 A.2d 622 (1957), cert. den. 355 U.S. 832, 78 S.Ct. 46, 2 L.Ed.2d 44, reh. den. 355 U.S. 885, 78 S.Ct. 146, 2 L.Ed.2d 115; Hornick v. Bethlehem Mines Corp., supra.

Obviously, Judge Flaherty felt that if this evidence was as crucial to appellants' case as they now submit, they most certainly could have and should have gathered their best evidence of this writing during the several years prior to trying this lawsuit. The refusal of a new trial on this ground was a proper exercise of discretion by the trial court and we, therefore, dismiss appellant's allegation of error.

[ 306 Pa. Super. Page 316]

Because we can find no reversible error in the trial court's order of May 30, 1979 refusing appellants' motion for new trial and judgment n.o.v., we affirm.

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