No. 00934 Pittsburgh, 1982, Appeal from the Order of July 26, 1982 in the Court of Common Pleas of Indiana County, Civil Division, No. 903 C.D. 1977
Michael E. Calderone, Pittsburgh, for appellant.
John M. Cramer, Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.
Tamilia, Johnson and Montgomery, JJ.
[ 334 Pa. Super. Page 27]
This is an appeal from the Order of the Court of Common Pleas of Indiana County entered July 26, 1982, amending a prior order of the Court of June 8, 1982 and adding prejudgment interest to a jury verdict rendered in favor of appellee, Metropolitan Edison Company, and against appellant, Old Home Manor, Inc. For the reasons stated below, we affirm.
An action in assumpsit was filed by Metropolitan Edison Company (hereinafter Met-Ed) on May 6, 1977 seeking the return of the balance of monies deposited with appellant pursuant to the parties' contract for a supply of coal. Appellant contended that the remaining balance of the monies deposited was $225,648.80; Met-Ed contended that the amount was $225,894.05. On November 3, 1981, the jury, after being instructed by the trial judge to consider only the liquidated sum proffered by appellant since Met-Ed produced no credible testimony to support its figure, returned a verdict in favor of Met-Ed in the amount of $225,648.80. Following the jury verdict, Met-Ed noted on the record its request for prejudgment interest which had been sought in both its complaint and pre-trial statement. Thereafter, on November 18, 1981, Met-Ed filed a praecipe for entry of judgment in the amount of the jury's verdict with interest at six (6) per cent from January 30, 1976, a date seven days after Met-Ed demanded return of the deposit by letter to appellant. However, prior to the filing of the praecipe, appellant had filed timely post-trial motions that had not been disposed of by the lower court. Consequently, the parties consented to strike the judgment that had been entered by the prothonotary. See Pa.R.C.P. 1039. By order of the lower court, dated December 16, 1981, the judgment was stricken.
On June 8, 1982, the lower court issued its opinion denying appellant's post-trial motions and order directing the entry of judgment "in accordance with the jury's verdict". On June 9, 1982, notice of entry of judgment was sent to the parties by the prothonotary. Said notice made no
[ 334 Pa. Super. Page 28]
reference to an award of prejudgment interest. On June 15, 1982, Met-Ed filed a second praecipe for entry of judgment with interest at six (6) per cent from January 30, 1976. A second notice of entry of judgment was attached thereto although this notice bore the date of June 9, 1982 and referenced the praecipe filed by appellant on June 15, 1982.
Appellant filed its notice of appeal on June 18, 1982 from the judgment upon the jury verdict entered June 9, 1982.*fn1 Counsel for Met-Ed learned it was appellant's position that the amount for appellant's appeal bond, based on the order of June 8, 1981, should provide only for the principal sum found owing to the appellant and not include interest. On June 29, 1982, Met-Ed filed a petition for correction of judgment in the lower court to include interest. The lower court issued a rule to show cause. Appellant filed a response to the petition, argument was held and on July 26, 1982, the lower court issued an opinion and order amending the order of June 8, 1982 so that the second sentence of that order provided, "Judgment in accordance with the jury's verdict should be entered in the amount of $225,648.80 with costs, and interest at a rate of six per cent (6%) from January 30, 1976 to the date of entry of judgment". On August 11, 1982, appellant filed a notice of appeal from the order of July 26, 1982. This Court granted appellant's application for a stay of the order of July 26, 1982 on September 13, 1982.*fn2
[ 334 Pa. Super. Page 29]
Appellant first contends that Met-Ed waived its right to prejudgment interest since it failed to request the issue be submitted to the jury and failed to except to the lower court's charge containing no relevant instruction. Appellant cites Tibbetts v. Prudential Insurance Company of America, 313 Pa. 310, 169 A. 382 (1933) wherein the Supreme Court of Pennsylvania held that a trial court could not amend a jury's verdict to include interest where the court had "failed to instruct the jury that interest [should] be allowed in the event of recovery of a liquidated debt." Id., 313 Pa. at 316, 169 A. at 384. The court reasoned that "[a]s the jury was not instructed that interest might be allowed, it [could] not be said that [the jury] intended to make it part of the verdict, a fact which excludes the right of the court to do so." Id., 313 Pa. at 316, 169 A. at 384-85; see generally House of Pasta, Inc. v. Mayo, 303 Pa. Super. 298, 449 A.2d 697 (1982); Kardibin v. Associated Hardware, 284 Pa. Super. 586, ...