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RAGNAR BENSON v. BETHEL MART ASSOCIATES (12/23/82)

filed: December 23, 1982.

RAGNAR BENSON, INC.
v.
BETHEL MART ASSOCIATES, A PARTNERSHIP, AND EDWARD SERVOV AND GOLDIE J. SZARKA, INDIVIDUALS AND GENERAL PARTNERS OF BETHEL MART ASSOCIATES, APPELLANTS



No. 362 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, Allegheny County, at No. GD 76-25461.

COUNSEL

David M. Priselac, McKeesport, for appellants.

Joseph W. Conway, Pittsburgh, for appellee.

Wieand, Johnson and Montemuro, JJ. Wieand, J., concurs in the result.

Author: Montemuro

[ 308 Pa. Super. Page 408]

Appellee, a construction firm, entered into a contract with appellants, a limited partnership, for construction of a shopping mall. Appellants had construction financing which was about to expire, and in order to prevent loss of that commitment, the contract was signed in July of 1975 before the construction plans were in final form. Addenda were later signed revising the original terms. A completion date of September 1, 1976 was abandoned by written agreement and material increases in construction costs were also provided.

The lower court found, and the record confirms, that appellants were responsible to provide complete plans and specifications as well as all governmental approvals and permits, but were slow to provide these essential papers. Appellee was finally able to begin work on site in December, 1975 and to haul soil off-site in late April, 1976. Work was halted on May 14, 1976 when appellants sent a telegram ordering the work to stop.

Appellee filed Complaint in Assumpsit on November 12, 1976, alleging a typical case of failure to perform on a construction contract. Appellants' Answer, New Matter and Counterclaim first raised issues of "breach of trust and

[ 308 Pa. Super. Page 409]

    confidence" between the parties and "conspiracy" of appellee with a subcontractor, King David, the site excavator.

The case was rescheduled many times, but eventually came to trial in January of 1980. The trial judge declared a mistrial sua sponte, after improper remarks in the opening address of appellants to the jury, and then gave permission to appellee to amend its pleadings to conform to the proofs it wished to offer apropos of the bad faith and conspiracy aspects of the case. Appellants then once again requested a continuance, which was denied. The amended pleadings were filed January 25, 1980 and the case was re-tried in late May and early June of 1980.

Testimony was of two types: some went to the issues of the responsibilities of the parties under the written contract and the assignment of blame for failure to meet those responsibilities; some went beyond the wording of the contract proper as both parties attempted to discuss issues of bad faith and fraud.

The purport of the appellants' proof of bad faith was to show that subcontractor, King David, had deliberately put off the preparation of the site in order to use the displaced soil to improve ground he wished to purchase or that he had over-estimated the work done and had over-charged for his hauling. Appellants' theory was that appellee was responsible for the bad faith of an agent-subcontractor. Appellee, on the other hand, countered with testimony that appellants had foisted King David upon it as part of their deal, and that appellants had falsely guaranteed an easement to an adjacent property, a situation which eventually led to the more costly hauling of soil to another area.

We agree with the lower court that testimony on the bad faith issues were not sufficient to prove a case for either party. The record reveals the rosy assurances commonly offered in the early phases of a potentially profitable deal. The trial judge properly refused to charge the jury on these issues and in no way based its opinion upon the parol evidence which was permitted to be heard while those issues were explored.

[ 308 Pa. Super. Page 410]

The jury was therefore restricted to breach-of-contract issues, and returned a verdict for the appellee after a trial that had consumed seven days, in a case which had produced a reproduced record of some 1500 pages. Appellants have appealed that verdict on nine grounds, none of which we find merits ...


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