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INGRASSIA CONSTRUCTION COMPANY v. JOHN M. WALSH (03/14/84)

submitted: March 14, 1984.

INGRASSIA CONSTRUCTION COMPANY, INC.,
v.
JOHN M. WALSH, INDIVIDUALLY AND TRADING AS WALSH STEEL SERVICE COMPANY, APPELLANT



No. 02985 Philadelphia, 1982, APPEAL FROM ORDER, COURT OF COMMON PLEAS, CIVIL DIVISION MONROE COUNTY, NO. 673 JUNE TERM, 1979

COUNSEL

Howard M. Levinson, Wilkes-Barre, for appellant.

Robert E. Simpson, Jr., Easton, for appellee.

Cavanaugh, Wieand and Cirillo, JJ. Wieand, J., concurred in the result.

Author: Cavanaugh

[ 337 Pa. Super. Page 61]

This is an appeal from the Judgment entered in the Court of Common Pleas of Monroe County denying defendant's Motion for Judgment N.O.V. Appellant advances two bases for contending that the court below erred in denying his Motion for Judgment N.O.V.: (1) that the appellee was not entitled to a verdict based on the theory of oral contract because he did not properly amend his complaint; and, (2) that there was no "meeting of the minds" to support the jury's finding of a contract. For the reasons stated below, we affirm.

The standard of review for an order denying a motion for a judgment n.o.v. is well defined. It is the same standard used by the trial judge in deciding whether to grant the motion. "Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary," we must reverse such an order denying the motion "when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case." Timbrook v. Foremost Ins. Co., 324 Pa. Super. 384, 387, 471 A.2d 891, 892-93 (1984). It

[ 337 Pa. Super. Page 62]

    is not within this court's province to weigh the evidence or to render judgments as to credibility. See City of Bethlehem v. Gawlik, 30 Pa. Commonwealth Ct. 390, 374 A.2d 540, 542 (1977); P.L.E. Judgment ยง 146.

Appellant, Walsh, first contends that a Judgment N.O.V. is proper here because the appellee, Ingrassia, proceeded at trial under a theory of recovery which was not pleaded in the manner prescribed by Pa.R.C.P. No. 1033.*fn1 Pa.R.C.P. No. 1033 requires either "filed consent of the adverse party" or "leave of court" to amend a pleading. Walsh alleges that Ingrassia's original and first amended complaints sought recovery based on a theory of written contract, and that later appellee forwarded to appellant a copy of a proposed second amended complaint. Appellant contends that he consented to the proposed second amended complaint by letter. According to Walsh, the proposed second amended complaint to which he consented did not differ from the earlier complaints as to the theory of recovery asserted. In both the original, the amended, and the proposed second amended complaints, Ingrassia allegedly averred a theory of recovery based on written contract. However, according to Walsh, the second amended complaint that Ingrassia actually filed differed from the one Walsh consented to in that the one actually filed set forth a theory of recovery based on oral contract. Our review of the record indicates that Walsh's allegation is unsubstantiated. Furthermore, Walsh alleges that the second amended pleading was filed without leave of court.*fn2 Thus, according

[ 337 Pa. Super. Page 63]

    to Walsh's theory neither of the statutorily prescribed methods for amendment was followed. Contrary to this contention, Ingrassia maintains that his amended complaint which averred a theory of recovery based on oral contract was "properly filed." We need not decide whether the appellee amended the pleading in the statutorily proper manner, for even if he did not, appellant has waived any right he may have had to object to it for the reasons stated below.

Our review of the record in the instant case reveals that Walsh was aware of Ingrassia's intention to employ the theory of recovery based on oral contract. The amended complaint averred the existence of an oral contract; moreover, evidence of the existence of an oral contract was admitted at trial.*fn3 Our review of the record indicates that Walsh failed to object to the evidence. "Although it is correct that a party's proof must be consistent with his pleadings . . . a failure to object to a variance at trial is a waiver of the right to object to it thereafter." Commercial Trading Company, Inc. v. Milsan Mills Incorporated, 327 Pa. Super. 407, 411-412, 476 A.2d 16, 18-19 (1984) (citations omitted). Timely objection would have enabled appellee to seek ...


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