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WICKES CORPORATION D/B/A WICKES LUMBER v. NEWTOWN SAVINGS ASSOCIATION AND STEPHEN HEARN (11/25/83)

filed: November 25, 1983.

THE WICKES CORPORATION D/B/A WICKES LUMBER, APPELLANT,
v.
THE NEWTOWN SAVINGS ASSOCIATION AND STEPHEN HEARN, AN INDIVIDUAL, AND WILLIAM E. WORTHINGTON, INC., AND WILLIAM E. WORTHINGTON, III, AN INDIVIDUAL. THE WICKES CORPORATION D/B/A WICKES LUMBER V. THE NEWTOWN SAVINGS ASSOCIATION AND STEPHEN HEARN, AN INDIVIDUAL, AND WILLIAM E. WORTHINGTON, INC., AND WILLIAM E. WORTHINGTON, III, AN INDIVIDUAL. APPEAL OF NEWTOWN SAVINGS ASSOCIATION



No. 1819 Philadelphia 1982, No. 1959 Philadelphia 1982, Appeal from the Judgment Nunc Pro Tunc of the Court of Common Pleas, Civil Division, of Bucks County at No. 79-10496-13-2.

COUNSEL

Richard D. Link, Doylestown, for appellant (at No. 1819) and for appellee (at No. 1959).

William F. Schroeder, Newtown, for appellant (at No. 1959) and for appellee (at No. 1819).

Ward F. Clark, Doylestown, for Worthington, appellees.

Hester, Popovich and Hoffman, JJ.

Author: Popovich

[ 322 Pa. Super. Page 455]

On September 10, 1979, appellant, The Wickes Corporation (hereinafter Wickes), filed a Complaint in Trespass and Assumpsit against appellees, The Newtown Savings Association (hereinafter Newtown) and Stephen Hearn, president of Newtown.*fn1 A non-jury trial was held in April and May of 1981, after which Wickes was awarded a verdict of $20,363.86 on its assumpsit claim. Exceptions were filed on behalf of both Wickes and Newtown. On May 26, 1982, the court below sustained one of appellant's exceptions and

[ 322 Pa. Super. Page 456]

    increased the award to $21,563.86, with interest from the date of the filing of the complaint. Both Wickes and Newtown appeal from the judgment entered nunc pro tunc on January 24, 1983.

Wickes contends that the trial court erred in dismissing its trespass claims against Newtown and defendant Hearn. Wickes also argues that the trial court should not have limited its contract damage award to reimbursement for deliveries occurring only after August 15, 1978 and, that interest should be paid on the judgment from October 1, 1980.

Appellees contend that the trial court was correct in dismissing the trespass claims, but erred in awarding contract damages. We agree with the appellees and, accordingly, reverse the judgment below.

The facts of the case are as follows: Worthington, Inc. (hereinafter Worthington), by its principal, William E. Worthington, III, was engaged in the construction of a number of residential homes in Bucks County, Pennsylvania. The financing for a number of these buildings was obtained through construction loans issued by Newtown. In March of 1978, Wickes began supplying lumber and related building products to Worthington. However, Wickes advised Worthington that they could not extend significant credit to Worthington without assurance of security and payment. In compliance with this request, Worthington presented to Wickes a copy of a letter dated March 31, which was signed not only by Worthington but also by Stephen Hearn in his capacity of president of Newtown. The letter provided:

"Mr. Hearn,

In order to obtain enough credit to fulfill my framing lumber needs, I have made an agreement with Wickes Lumber, a division of the Wickes Corporation. It applies to the construction loans being held by Newtown Savings Association for William E. Worthington, Inc. in which Wickes Lumber will supply material.

[ 322 Pa. Super. Page 457]

    a.) Newtown Savings Association will disburse the 2nd draw to William E. Worthington, Inc. in two checks made payable to William E. Worthington, Inc. One check to be in the amount owed to Wickes Lumber for that particular job; the other to be for the remainder of the draw.

     b.) William E. Worthington, Inc. agrees to then endorse check and forward to Wickes Lumber in payment of lumber supplied.

Wickes Lumber is a new company I am dealing with and because of the large amount of money involved, they would feel more comfortable knowing where the money is coming from until I have established credit with them. Your signature below will be required by Wickes Lumber in ...


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