No. 194 Pittsburgh, 1981, No. 225 Pittsburgh, 1981, Appeals from Order and Judgment of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 838 of 1978.
Marshall J. Conn, Pittsburgh, for Ernest Renda, appellant (at No. 194) and appellee (at No. 225).
Donald J. Snyder, Greensburg, for Reliance Universal, appellant (at No. 225) and appellee (at No. 194).
Wieand, Johnson and Montemuro, JJ.
[ 308 Pa. Super. Page 100]
The action in assumpsit which spawned the cross appeals presently before this Court was brought by Reliance Universal, Inc. of Ohio ("Reliance") to recover amounts due for materials supplied to Ernest Renda Contracting Company, Inc. ("Renda") in the course of a sewer construction project in Hempfield Township, Westmoreland County. Named as defendant in addition to Renda was Safeco Insurance Company
[ 308 Pa. Super. Page 101]
of America ("Safeco"), the corporate surety on the labor and material bond supplied by Renda to Hempfield Township Municipal Authority. A jury found that Renda had failed to pay $91,382.85 for materials purchased. It also made a special finding that Renda had agreed to pay and was liable to Reliance for a service charge of 1 1/2 per cent per month. The trial court computed this amount and molded the verdict against Renda in the total amount of $116,921. Although observing that Safeco was not liable for the same service charge, the trial court nevertheless added interest at the rate of ten (10%) per cent per year and molded the verdict against Safeco to be $105,535.19. Post-trial motions were denied, judgments were entered on the molded verdicts, and all parties appealed. We conclude that the assessment of interest against Safeco at the rate of ten (10%) per cent per annum was unauthorized and erroneous. Other averments of trial error, however, have been decided correctly by the court en banc and have been fully considered in the comprehensive opinion of The Honorable Gilfert M. Mihalich. These alleged errors are:
(1) That the court erred by allowing the jury to consider as an admission a statement in Renda's pleading that it had sent to Reliance a letter and check for $81,304.75 as "full payment for all materials supplied to the project;"
(2) That the court erred by refusing to allow the defendants to amend their counterclaim during the surrebuttal stage of the trial;
(3) That the court erred by refusing to permit Frank Renda, a defense witness, to express an expert opinion regarding the cause of leaks in the pipes and by refusing to permit testimony of the cost of repairing such leaks;
(4) That the court abused its discretion by allowing allegedly prejudicial comments during closing argument by Reliance's counsel;
[ 308 Pa. Super. Page 102]
(5) That the court erred when it failed to give immediate curative instructions following the closing remarks of Reliance's counsel.
The trial court interpreted Paragraph 19 of Renda's New Matter as a partial admission of liability. Paragraph 19 states:
19. Together with a letter dated June 19, 1978, defendant Renda mailed a check to Mr. R.R. Gedrock of Reliance in the total amount of $81,304.75 as full payment for all materials supplied to the project in the above captioned case. (T. 73, 74)
This averment, as the lower court observed, "makes no attempt to state, as counsel for Defendants has suggested in his Brief, that the letter dated June 19, 1978 was an offer of compromise or settlement. Defendant recites a statement of liability admitted in the amount of $81,304.75."
The law in Pennsylvania generally excludes evidence of offers of compromise. However, offers of compromise are to be distinguished from admissions of fact, which, of course, may be received as competent evidence. Gogel v. Blazofsky, 187 Pa. Super. 32, 142 A.2d 313 (1958), citing Woldow v. Dever, 374 Pa. 370, 97 A.2d 777 (1953) and Liebster v. Lucas, 82 Pa. Super. 184 (1923). The trial court could properly treat Renda's check as an admission that it owed Reliance for materials sold and delivered in the amount of $81,304.75.
Renda's motion to amend its counterclaim was made after two weeks of trial and during surrebuttal. The trial court found that the untimeliness of the request to amend would, if allowed, substantially ...