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JOHN W. LINNET v. FLOYD HITCHCOCK (01/27/84)

filed: January 27, 1984.

JOHN W. LINNET, T/D/B/A IDEAL PARK ENTERPRISES, APPELLANT,
v.
FLOYD HITCHCOCK, JR. AND AL LEONZI, T/D/B/A KEYSTONE ALL-STAR SPORTS CAMP



No. 900 PHILADELPHIA, 1982, Appeal from an Order of the Court of Common Pleas, Civil Division, of Columbia County, No. 544 of 1980.

COUNSEL

John M. Kuchka, Berwick, for appellant.

Thomas E. Richie, Bloomsburg, for appellees.

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

Author: Per Curiam

[ 324 Pa. Super. Page 212]

This appeal arises from an Order dismissing plaintiff-appellant's exceptions and denying recovery to either party in an action in assumpsit before a judge sitting without a jury.

Appellant, the plaintiff below, John W. Linnet, t/d/b/a Ideal Park Enterprises, instituted the within suit in April, 1980, against appellees, defendants below, Floyd Hitchcock, Jr. and Al Leonzi, t/d/b/a Keystone All-Star Sports Camp. The action arose as a result of an oral agreement entered into by the parties in June, 1979, for the use of Ideal Park, a recreation and camping complex owned by appellant.*fn1 Appellees used the athletic camp portion of the premises as a sports facility. The conflict concerns the amount of compensation due and owing appellant, relating in particular to the payment of overhead expenses. The lower court, entered a verdict for appellees with respect to appellant's complaint and in favor of appellant with respect to appellees' counter-claim. Plaintiff-appellant filed exceptions. The lower court dismissed the exceptions and appellant filed this appeal.

The first issue is whether the indefiniteness of the terms of the parties' oral agreement precludes its enforceability; otherwise stated, are the terms of the oral agreement certain enough to provide the basis for providing an appropriate remedy? The second issue is whether appellant can recover in quasi-contract.

It is settled that the findings of a trial judge sitting without a jury must be accorded the same weight and effect on appeal as a jury verdict, and will not be disturbed in the absence of an abuse of discretion or a finding of lack of evidentiary support. Brenna v. Nationwide Ins. Co., 294 Pa. Super. 564, 440 A.2d 609 (1982); Johnson Truck Rental Co. v. Fowler-McKee, 281 Pa. Super. 271, 422 A.2d 164 (1980); First Pennsylvania Banking and Trust Co. v. Liberati, 282 Pa. Super. 198, 422 A.2d 1074 (1980). An

[ 324 Pa. Super. Page 213]

    appellate court, however, is not bound by the trial court's conclusions of law based on its findings of fact. First Pennsylvania Bank and Trust Co. v. Liberati, supra. It is also clear that the party favored by the findings of the trial judge is entitled to have the evidence viewed in the light most favorable to him; that is, all the evidence and proper inferences favorable to him must be taken as true and all unfavorable inferences rejected. Brenna v. Nationwide Ins. Co., supra. This is particularly true in a case in which the credibility of witnesses must be closely evaluated. Brenna v. Nationwide Ins. Co., supra.

So viewed, the evidence in this case is summarized as follows:

Appellant testified that appellees agreed to pay the overhead expenses of the athletic camp portion of the premises including taxes, utilities, and insurance. He further testified that appellees agreed to pay $1.00 per day per camper for the use of the swimming pool; to reimburse him for food and supplies taken from his inventory; and that partial payments were made to him by appellees for overhead expenses of the camp. Appellees' testimony contradicted the majority of the allegations concerning the agreement. Appellees stated that they agreed to pay $1.00 per day per camper for the use of the premises and facilities and also to reimburse appellant for the food and supplies consumed. Appellee Leonzi testified that he paid $7.50 per day per camper for use of the same premises, facilities and food service for the camp the previous summer, 1978, in addition to paying $1.00 per day per camper for use of the swimming pool. Appellees also claimed that appellant failed to provide wholesome food, and neglected to complete certain physical improvements on the premises as promised. Both parties gave conflicting testimony regarding the ...


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