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GARY SULLIVAN v. CITY PHILADELPHIA (05/27/83)

filed: May 27, 1983.

GARY SULLIVAN
v.
CITY OF PHILADELPHIA, APPELLANT



No. 261 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Trial Division, of Philadelphia County, at No. 5979 March Term, 1976.

COUNSEL

David T. Anderson, Assistant City Solicitor, Philadelphia, for appellant.

Jerome Gamburg, Philadelphia, for appellee.

Montemuro, Hoffman and Van der Voort, JJ.

Author: Van Der Voort

[ 314 Pa. Super. Page 383]

Plaintiff Sullivan filed a complaint in trespass naming appellant-City of Philadelphia (hereafter referred to as the City) as defendant. Involved was the confiscation of Sullivan's car which the city, subsequent to the seizure, was unable to locate. A panel of arbitrators found against the City and a timely appeal was taken to the Court of Common Pleas. The court sitting non-jury returned a verdict in favor of Sullivan. The City filed exceptions which were denied on December 4, 1980. The City thereafter appealed to this court.*fn1 The City raises four issues on this appeal.

I. Can a verdict be awarded in excess of the amount specifically pleaded?

The panel of arbitrators awarded appellee $2,800.00. In his complaint in the Court of Common Pleas appellee demanded judgment in the amount of $2,800.00. The trial court found in favor of plaintiff-appellee in the amount of $7,800.00. The different awards reflect different values of a 1965 Corvette at the different times of the respective proceedings. The City contends that without a formal amendment of the ad damnum clause, the higher award was improper. Appellee counters that the trial court correctly amended the proceedings to conform to the evidence.

[ 314 Pa. Super. Page 384]

Amendment of the ad damnum clause is permissible at any point in the litigation. Felo v. Kroger Groc. & Bak. Co., 347 Pa. 142, 31 A.2d 552 (1943); Theisen v. Pittsburgh Rys. Co., 256 Pa. 475, 100 A. 994 (1917); Ashbaugh v. Ashbaugh, 167 Pa. Superior Ct. 368, 75 A.2d 13 (1950). See Pa.R.C.P. No. 1033. Furthermore such amendment may be made on the court's own motion. Delgrosso v. Gruerio, 255 Pa. Superior Ct. 560, 564 n. 6, 389 A.2d 119 n. 6 (1978). We find no error in this aspect of the court's award.

II. Could the court consider appellee's loss of use and the fact that the vehicle was a collector's item?

The City contends that the complaint alleged neither loss of use nor the special value of the vehicle therefore the court could not award damages for either.

After carefully reviewing the lower court's opinion, we find that the City incorrectly reads such opinion to award for loss of use. No mention of loss of use is made in the opinion. Apparently, the City is concerned over argument made in response to its argument that the upkeep and cost of maintenance should have been deducted from any award. The court countered that, then, loss of use should also be considered. (N.T. pp. 28-29). After the completion of the testimony, the trial judge reiterated her position to justify her disinclination to deduct for maintenance. (N.T. p. 47). ...


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