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WILLIAM C. EBNER AND SUSANNA EBNER v. BENJAMIN EWIAK (03/23/84)

submitted: March 23, 1984.

WILLIAM C. EBNER AND SUSANNA EBNER, HIS WIFE
v.
BENJAMIN EWIAK, APPELLANT, AND ELMA EWIAK



No. 01103 PGH 82, Appeal from the Order of August 24, 1982 in the Court of Common Pleas of Erie County, Civil Division, at No. 1426-A-1978.

COUNSEL

Joseph J. May, Erie, for appellant.

Michael E. Dunlavey, North East, for Ebner, appellees.

Elma Ewiak, appellee, in propria persona.

Popovich, Hoffman and Lipez, JJ.

Author: Hoffman

[ 335 Pa. Super. Page 375]

Appellant alleges error in: (1) the admission of appellees' cost lists; (2) the admission of his wife's testimony against him; (3) the lower court's refusal to give certain requested jury charges; (4) the rendering of the jury verdict in the absence of his defense counsel; (5) the amount of damages awarded; and (6) the rejection of after-discovered evidence. We find these contentions meritless and, accordingly, affirm the order below.

In November of 1974, the Ebners and the Ewiaks agreed to construct a home for the Ebners on property owned by the Ewiaks. The Ewiaks, Mrs. Ebner's parents, also agreed to deed over the home and underlying property to the Ebners once construction was completed. After the home

[ 335 Pa. Super. Page 376]

    was finished and the Ebners moved in, Mr. Ewiak refused to deliver the deed to his daughter and son-in-law. Consequently, on April 21, 1978, the Ebners brought a breach of contract action against the Ewiaks, seeking to (1) compel the defendants to deed the house and property to them and (2) recover damages for work performed and materials provided in the construction of the house. The complaint also alleged that Mr. Ewiak had harassed the plaintiffs after they moved in thereby causing them to move to New York, and sought additional damages therefor. Following a July 10, 1981 trial, the jury found Mr. Ewiak liable and awarded the plaintiffs damages of $6,400.00 for breach of contract and $2,100.00 for harassment. The jury also found that Mrs. Ewiak was not a party to the breach of contract nor the harassment. Mr. Ewiak filed a motion for a new trial, which the lower court denied en banc on August 23, 1982. This appeal by Mr. Ewiak followed.

Appellant first contends that the trial court erroneously admitted into evidence appellees' material and labor cost lists (Plaintiffs' Exhibits 1 and 2). He argues specifically that these lists were inadmissible hearsay because they did not qualify under either the business records or recorded recollection exceptions. We find, however, that appellant has failed to preserve this argument for appeal because, during the trial, he objected to the admission of these lists on different grounds, namely, that the list did not include a $3,500 figure and was made from memory. "Where a litigant objects to evidence on appeal on a different ground than that which was asserted at trial, we will not consider the new objection since it has not been properly preserved for appellate review." Stulz v. Boswell, 307 Pa. Superior Ct. 515, 524, 453 A.2d 1006, 1010 (1982). See also Estate of Cusat, 470 Pa. 418, 368 A.2d 698 (1977); Lewis v. Pittsburgh Railways Co., 386 Pa. 490, 126 A.2d 454 (1956).

Appellant also contends that his wife was erroneously allowed to present testimony against him at trial in violation of 42 Pa.C.S.A. ยง ...


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