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PITTSBURGH'S AIRPORT MOTEL v. AIRPORT ASPHALT AND EXCAVATING COMPANY (12/02/83)

filed: December 2, 1983.

PITTSBURGH'S AIRPORT MOTEL, INC., A PENNSYLVANIA CORPORATION AND GREATER PITTSBURGH SERVICE CORPORATION, A PENNSYLVANIA CORPORATION, APPELLANTS,
v.
AIRPORT ASPHALT AND EXCAVATING COMPANY, A PENNSYLVANIA CORPORATION AND JAMES H. WENTZ



NO. 520 PITTSBURGH 1981, Appeal from the Order in the Court of Common Pleas of Allegheny County No. GD80-17881, Civil Division

COUNSEL

Edward C. Leckey, Pittsburgh, for appellants.

Eugene B. Strassburger, Pittsburgh, for appellees.

Cercone, President Judge, and Spaeth and Hester, JJ.

Author: Spaeth

[ 322 Pa. Super. Page 151]

This appeal arises from an order sustaining preliminary objections to a complaint in equity. As to one defendant, Airport Asphalt and Excavating Co., the order dismisses the complaint; as to the other defendant, James H. Wentz, it certifies the action to the law side of the court. As to the first part of the order we find the record incomplete and remand for further proceedings. As to the second part, we quash the appeal as interlocutory.

-1-

Appellant Pittsburgh Airport Motel, Inc., is the landlord, and appellant Greater Pittsburgh Service Corporation is the tenant, of premises known as Airways Airport Parking Pavilion in Allegheny County. Appellants entered into two construction contracts with appellee James H. Wentz to improve the parking facility. Airport Asphalt and Excavating Company, a Pennsylvania corporation wholly owned by Wentz, was not a party to the contracts. Appellants allege that Wentz stood in a confidential relationship with them, and that he abused that relationship. They claim that Wentz

     was not faithful to his obligations under the contracts in that, by presenting false invoices for labor, materials and machine time, by kickbacks from suppliers and by means of other false representations to Plaintiffs' [ i.e., appellants'] General Manager, he obtained funds in excess of those to which he was entitled under the contracts, which were used to acquire and improve real estate titled in the name of his wholly owned corporation, Airport Asphalt and Excavating Company. In addition, Plaintiffs' Complaint alleges that labor and materials paid for by Plaintiffs were used to improve this property. In short, by actions of Wentz which contain all of the elements of fraud, property of Defendant, Airport Asphalt and Excavating Company, was acquired and improved.

[ 322 Pa. Super. Page 152]

Brief for Appellants at 13.

On appellees' preliminary objections, the trial court dismissed the action against Airport Asphalt, stating that it was "apparent that the basis for the cause of action [is] contracts entered into with the defendant James H. Wentz" and that there were no allegations "[]sufficient to establish a course of action against the corporation [ i.e., Airport Asphalt]." Appellants contend that before dismissing their complaint, the trial court should have granted them leave to amend it.

After filing this appeal, appellants filed with the trial court a Statement of Proceedings, which was docketed and has been transmitted to us by the trial court as part of the record. In this Statement it is said that at the argument on appellees' preliminary objections, appellants, by their counsel, "presented to the [trial court] the Motion for Leave to Amend Complaint which is part of the Record in this case." Appellees agree that a Motion for Leave to Amend Complaint was in fact presented to the trial court at the argument. Brief for Appellees at 4. However, the Motion is not part of the record. So far as we are concerned, the record is "[t]he original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court . . . ." Pa.R.A.P. 1921. We have examined these papers, and appellants' Motion is not among them. Nor, we may add, is there any reference to the Motion in the docket entires. Therefore, we may not consider the Motion. In saying this, we are aware that appellants have printed as part of their Reproduced Record what purports to be their Motion. R.R. 57a-59a. But ...


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