4. Request by plaintiffs to mark mortgages satisfied
The jury could fairly conclude that plaintiffs requested that Weissman mark the mortgages satisfied. Their counsel's letters request satisfaction pieces. Defendant argues that any request to satisfy was ineffective under the statute because it was made on behalf of Mr. Levin only, not both mortgagors. However, the Court instructed the jury that a husband can act as his wife's agent where she has authorized him to do so, just as an attorney can act as his client's agent. (N.T. 6.22-23.) There was sufficient evidence at trial that Linda Levin authorized her husband to act as her agent in conducting business matters. The jury could properly have concluded that counsel's letters setting forth Bennett Levin's position also set forth Linda's position. Cf. J.R. Christ Construction Co. v. Olevsky, 426 Pa. 343, 348-49, 232 A.2d 196 (1967) (presumption with respect to property held by the entireties that during a marriage either has the power to act for both where benefits inure to both).
5. Tender of reasonable costs
Defendant contends that plaintiffs failed to establish the statutory element of tender by plaintiffs of the reasonable costs of marking the mortgages satisfied. The Court charged that plaintiffs could fulfill this element by showing an understanding between Weissman and plaintiffs that the Levins or their lawyer would take the step of having the mortgages marked satisfied. The law does not require an idle, unnecessary act. The Court also charged that if there was no such understanding, a failure to tender the satisfaction fee would defeat plaintiffs' claim. (N.T. 6.18-20.)
This charge was proper under the statute. Plaintiffs need not indulge in idle ceremony to protect their rights under the statute. The jury could have found from the parties' course of dealings, correspondence and testimony that the parties had an understanding that such a fee need not be tendered because the Levins, not Weissman, were going to take the step of going to the county office to clear up the official records. Indeed, that was how the mortgages were actually satisfied on December 14, 1981.
6. Failure to mark the mortgages satisfied in timely manner
The mortgages were satisfied in December, 1981. The jury could have found a valid tender of the full amount of mortgage money and interest due in October or November, 1980, more than forty-five days before December, 1981. In addition, the jury could have concluded from the evidence that plaintiffs fulfilled the statutory requirements in October, 1981 by sending checks to Weissman more than forty-five days before the mortgages were satisfied.
The statutory civil penalty permits an award of damages up to the amount of the mortgage-money, both to compensate the aggrieved party and to punish the offender. Werner v. Automobile Finance Co., supra, 347 Pa. at 219, 31 A.2d 898. Although actual injury is not necessary to make out a case, that is one factor for the jury to consider, as well as the attitude and conduct of the defendant, whether it was wanton and willful. "Everything which can and does make acts the subject of praise or censure; as of honesty or dishonesty, of kindness or cruelty, may enter into the consideration of the jury." Id. at 220, 31 A.2d 898, quoting Henry v. Sims, 1 Whart. 187, 200 (1836); Krevolin v. Williams, 160 Pa.Super. 411, 51 A.2d 422 (1947). The jury should consider whether the mortgagors were embarrassed, or hindered in the sale of their property by the unjustified refusal to satisfy the mortgages. Specktor v. Specktor, 158 Pa.Super. 323, 328, 44 A.2d 767 (1945). The statute does not require plaintiffs to show that defendant acted wantonly or maliciously, although that is a factor. Graham v. Mount Airy Building & Loan Association, 102 Pa.Super. 116, 156 A. 592 (1931).
The jury was properly instructed under these tests. In fact, the charge was favorable to Weissman because it included a punitive damage test, over plaintiffs' objections. (N.T. 6.25-27.) In view of all the evidence, I cannot say that the verdict was arbitrary or capricious, considering what the jury could well have found to be unreasonable and uncivilized business conduct by defendant. It was not excessive nor was it against the weight of the evidence; there was ample evidence to support the verdict. Nor is there a basis for judgment n.o.v. It was within the province of the jury to weigh the evidence, and its verdict will not be disturbed.
Nor did error in evidentiary rulings affect the verdict.
B. There Was No Error In Permitting Linda Levin To Be Joined As A Party-Plaintiff Before Defendants Began Their Case.
Defendant objects to the Court's ruling after plaintiff husband rested, permitting him to amend his complaint to add his wife as a second plaintiff. Defendant argues that Mrs. Levin is an indispensable party, that her claim is barred by one year statute of limitations, 42 Pa. Const.Stat.Ann. § 5523(2) (1982), and that it was error to submit her claim to the jury.
First, the Court has latitude over the conduct of the litigation. There was discretion to permit plaintiff to amend his complaint immediately after he rested his case, in response to defendant's motion for a directed verdict on grounds that Linda Levin had not been named a party plaintiff. The defendant and third-party defendants identified no prejudice from this amendment in response to the Court's repeated questions at the time this matter came up at trial. The amendment added no new claims, issues or evidence to the case. Linda Levin was deposed before trial and called in Bennett Levin's case, where she was cross-examined. Moreover, the Court granted the affected parties leave to re-examine any witness in light of this amendment. (N.T. 4.54-4.68.) See Wassel v. Eglowsky, 399 F. Supp. 1330, 1335 n. 1 (D.Md.1975) (amendment to complaint solely to add wife as plaintiff permitted "late in the litigation" where no identifiable prejudice resulted). Under Fed.R.Civ.P. 15(a), leave to amend "shall be freely given when justice so requires." Defendant had a full and fair opportunity to defend against Mrs. Levin's claim and thus suffered no prejudice. Evans Products Co. v. West American Insurance Co., 736 F.2d 920 at 923-924 (3d Cir.1984). Moreover, defendant never claimed at trial, when the issue of amending the complaint was argued, that Mrs. Levin's claim was barred by the statute of limitations.
Mrs. Levin's claim is not barred by the statute of limitations since the amended complaint relates back to the filing of the original complaint. There is, therefore, no prejudice in permitting the amendment in that regard. Fed.R.Civ.P. 15(c); Loudenslager v. Teeple, 466 F.2d 249 (3d Cir.1972); Britt v. Arvanitis, 590 F.2d 57 (3d Cir.1978); Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); 3 Moore's Federal Practice para. 15.15 (2d ed. 1984).
Under Rule 15(c), "whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Linda Levin's claim falls squarely within the rule's language. Defendant had ample fair notice of the facts on which she based her claim and of her husband's identical complaint arising out of the same events. Her complaint therefore is deemed to have been instituted within the statute of limitations. Wassel v. Eglowsky, supra; American Banker's Insurance v. Colorado Flying Academy, supra; Patraka v. Armco Steel Co., 495 F. Supp. 1013, 1016 (M.D.Pa.1980).
II. WEISSMAN v. RUTENBERGS
Weissman argues that the verdict was fatally inconsistent because the jury found that Harry Rutenberg had committed legal malpractice, but assessed no damages against Rutenberg. The essence of Weissman's complaint against Rutenberg was that he permitted the appeal in Levin v. Garfinkle to be dismissed for failure to file briefs. In view of the evidence that Weissman knew that Rutenberg was hospitalized for a stroke during the pendency of the appeal, yet took no steps to ensure that his case was being attended to or to get another lawyer, and in light of the testimony concerning the relationship between Weissman and the Levins, the jury could have concluded as it did that while Rutenberg may have acted negligently, any damages to Weissman were the product of Weissman's own acts or inaction. The jury could have concluded, observing Weissman's demeanor and outbursts as a witness in this case, that he acted in this business matter as an angry, vindictive and petty man and that Weissman called the shots, not his agent, Rutenberg.
Defendant's motions for a new trial and for judgment n.o.v. are denied.