No. 85 Philadelphia 1982, Appeal from the Judgment in the Court of Common Pleas, Civil Division, of Montgomery County at No. 78-13099.
James J. Regan, Jr., Bala-Cynwyd, for appellants.
Thomas A. Landis, Lansdale, for appellee.
Wickersham, Wieand and Lipez, JJ.
[ 326 Pa. Super. Page 585]
This is an appeal from the judgment of the Court of Common Pleas of Montgomery County, entered in favor of appellee and against appellants for $1650.00.*fn1
Appellee, Dream Pools of Pennsylvania, Inc., entered into a written contract with appellants, Mr. and Mrs. Baehr, on August 11, 1977. Dream Pools promised and agreed to construct and the Baehrs promised and agreed to purchase a swimming pool, which was to be built on the Baehrs' property for $5000.00. The contract provided for a refund of the down payment ($20.00) if the contract were cancelled
[ 326 Pa. Super. Page 586]
within three (3) days. The Baehrs did not cancel within three days. However, on August 24, 1977, thirteen (13) days later, Mrs. Baehr telephoned Dream Pools and announced the Baehrs' unconditional repudiation and cancellation of the contract.
Dream Pools subsequently sued the Baehrs for lost profits of $1,650.00, plus incidental expenses of commissions, advertising, and overhead.*fn2 The case was initially heard by a board of arbitrators, which found in favor of Dream Pools for $2,150.00. The Baehrs appealed from this award, and the case was tried again before the Honorable Horace A. Davenport. After a non-jury trial, Dream Pools again received a verdict in its favor, this time for $1,650.00. Thereafter, the Baehrs filed a motion for a new trial. That motion was denied on November 24, 1981 and judgment was entered accordingly on December 4, 1981. The Baehrs filed this timely appeal.
The Baehrs raise two questions for our consideration:
(a) Where no agreement, written or otherwise, has been made by the parties to submit any case to a trial by and before a Judge alone without a jury, may a judge validly order such a trial before himself alone and render a valid judgment th[e]rein?
(b) Where, in a written contract to excavate and construct a swimming pool on defendants' residential property is cancelled by defendants in ten (10) days (too late for refund of earnest money); and the plaintiff-contractor thereafter does nothing; i.e. digs no excavation, nor sends equipment, workmen, or tools to defendants' property and makes no part performance whatever, may such plaintiff-contractor sue and obtain a judgment for general business expenses and loss of profits?
Brief for Appellants at 1. We answer the first affirmatively but are unable to answer the second ...